DAVID HERNANDEZ, PETITIONER,
v.
DENNY'S RESTAURANT & CLAIMS CENTER, RESPONDENTS
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Petition for writ of mandamus to compel entry of a final order in workers' compensation case denied because petitioner failed to demonstrate that his motion for final order was called up for hearing.
A petitioner seeking mandamus to compel a public official to act must make an express and distinct demand for performance, and the motion must be called up for hearing.
[1] A petitioner seeking mandamus to compel a public official to perform an act must first make an express and distinct demand for performance and demonstrate that the motion…
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Join FLexlaw to unlock all legal intelligenceDavid Hernandez filed a workers' compensation claim against Denny's Restaurant. The Judge of Compensation Claims granted a motion to dismiss, and Hern…
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PER CURIAM.
The Judge of Compensation Claims (JCC) granted a motion to dismiss the claim of David Hernandez for workers’ compensation benefits. An appeal was taken to this court but the appeal was dismissed because the order merely granted a motion and was not a final, appealable order. Hernandez v. Denny’s Rest, 896 So. 2d 794 (Fla. 1st DCA 2005). Hernandez petitions this court for a writ of mandamus to compel the JCC to enter a final order. Petitioner explains that he filed a “Motion for Express and Specific Demand for Performance” with the Office of the JCC but no further activity has taken place.
A petitioner seeking to compel a public official to act must first make an express and distinct demand for performance of that act. Allen v. Young, 824 So. 2d 970 (Fla. 1st DCA 2002); Al-Hakim v. State, 783 So. 2d 293 (Fla. 5th DCA 2001). Although Hernandez has filed a motion requesting entry of a final order, he does not show that the motion has been called up for hearing and we must therefore deny the petition on authority of Smartt v. First Union National Bank, 771 So. 2d 1232 (Fla. 5th DCA 2000). Petitioner is now confined to a correctional institution and he must likely make arrangements with Department of Corrections officials and the Office of the JCC to appear telephonically and obtain a ruling on his motion. See Gosby v. Third Judicial Circuit, 586 So. 2d 1056 (Fla.1991).
PETITION FOR WRIT OF MANDAMUS DENIED.
BARFIELD, BROWNING and THOMAS, JJ., concur.
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Citator
Cited By
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Patterson v. State, 264 So. 3d 315 (Fla. 2d DCA 2019)…court). - 4 - appellate court. He must seek relief in the trial court first.' " (alteration in original) (quoting Leichty v. Clerk of Circuit Court, Lake Cnty., 948 So. 2d 47, 48 (Fla. 5th DCA 2007))); Hernandez v. Denny's Rest. & Claims Ctr., 926 So. 2d 446, 446 (Fla. 1st DCA 2006) ("A petitioner seeking to compel a public official to act must first make an express and distinct demand for performance of that act."). Accordingly, we affirm without prejudice to Mr. Patterson's right to seek the trans…
Authorities Cited
- Smartt v. First Union Nat'l Bank, 771 So. 2d 1232 (Fla. 5th DCA 2000)
- Gosby v. Third Judicial Circuit, 586 So. 2d 1056 (Fla. 1991)
- State v. Barber, 783 So. 2d 293 (Fla. 5th DCA 2001)
- Marzuq Al-Hakim v. State, 783 So. 2d 293 (Fla. 5th DCA 2001)
- Torrence W. Allen v. Young, 824 So. 2d 970 (Fla. 1st DCA 2002)
- Hernandez v. Denny's Rest. & Claims Ctr., 896 So. 2d 794 (Fla. 1st DCA 2005)